Cohen v. Air & Liquid Sys. Corp. (2023)

Our plain-English summary of Cohen v. Air & Liquid Sys. Corp. (New York Supreme Court, March 14, 2023).

Daniel Cohen and Helene Cohen sued many companies in New York County Supreme Court. Mr. Cohen has pleural mesothelioma. He says he was exposed to asbestos while working in engineering spaces on Naval ships, on valves, pumps and machinery. He asked the court to try his case together with that of James Valletti, who also has pleural mesothelioma and worked on Naval ships. A third plaintiff, Moran, died, and that part of the request was not decided. Defendants Superior Lidgerwood Mundy and Blackmer opposed. They argued the plaintiffs had different worksites, jobs, forms of exposure and time periods, and that a joint trial would prejudice them. The court applied the factors from Malcolm v National Gypsum, as the case management order directs. It found six of the eight factors satisfied: similar occupations, same disease, both plaintiffs living, completed discovery, same counsel, and similar equipment handled. It noted that Superior Lidgerwood conceded both men were exposed replacing packing and gaskets. It held that different worksites did not bar joinder and that safeguards could prevent juror confusion. The motion was granted.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court
• Decided: March 14, 2023
• Citation: 2023 NY Slip Op 30741(U)
• Stage: Other
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: New York

Outcome. The court granted plaintiff Daniel Cohen's motion for a joint trial of his case with the Valletti action, over the opposition of defendants Superior Lidgerwood Mundy Corporation and Blackmer Pump.

What the court held. Under the case management order and the Malcolm factors, asbestos cases may be joined for trial when enough factors are met; not every factor is required, and differing worksites do not preclude joinder.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Daniel Cohen: pleural mesothelioma

Who	Work	Where	When	Products
Daniel Cohen	serving on Naval ships, working on valves, pumps, and machinery in engineering spaces (the Navy); military service	Naval ships		gaskets and packing

The defendants

• Superior Lidgerwood Mundy Corporation (manufacturer)
• Blackmer Pump (manufacturer)
• Air & Liquid Systems Corporation (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Malcolm v. National Gypsum Co. (U.S. Court of Appeals, Second Circuit, 1993). The Second Circuit reversed the $226,038 judgment that Roberta Kranz, executrix of Lee Lewis's estate, won against Keene Corporation, and remanded for a new trial because consolidating 48 asbestos cases for trial was improper and prejudiced Keene.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

2023 NY Slip Op 30741(U)

DANIEL COHEN, HELENE COHEN, Plaintiff,

v.

AIR & LIQUID SYSTEMS CORPORATION, AMERICAN BILTRITE, INC., AMTROL, INC.,ANCHOR

DARLING VALVE COMPANY, ARMSTRONG INTERNATIONAL, INC., ATWOOD & MORRILL CO., INC.,

BLACKMER PUMP, BW/IP INTERNATIONAL CO., CARRIER CORPORATION, CBS CORPORATION,

CLARK RELIANCE CORPORATION, CRANE CO., DEAN PUMP DIVISION, DEZURIK, INC., DOMCO

PRODUCTS TEXAS, INC., ELECTROLUX HOME PRODUCTS, INC., ELLIOTT TURBOMACHINERY

CO., INC., FALK CORPORATION (THE), FLOWSERVE US, INC., FLOWSERVE US, INC., FMC

CORPORATION, FOSTER WHEELER, LLC, GARDNER DENVER, INC., GARDNER DENVER NASH,

LLC, GENERAL ELECTRIC COMPANY, GENUINE PARTS COMPANY, GOODRICH CORPORATION,

GOODYEAR CANADA, INC., GOODYEAR TIRE & RUBBER COMPANY (THE), GOULDS PUMPS,

INC., GREENE, TWEED & CO., INC., GRINNELL CORPORATION, HALE PRODUCTS, INC., HB

FULLER, HENRY TECHNOLOGIES, INC., HONEYWELL INTERNATIONAL, INC., HOWDEN

BUFFALO, INC., I.T.T. INDUSTRIES, INC., METROPOLITAN LIFE INSURANCE COMPANY, NASH

ENGINEERING HOLDINGS LLC, PNEUMO ABEX CORPORATION, PNEUMO-ABEX LLC, SPENCE

ENGINEERING COMPANY, INC., SPIRAX SARCO, INC., SPX COOLING TECHNOLOGIES,

INC.,SUPERIOR LIDGERWOOD MUNDY CORP., THRUSH CO., INC., TUTHILL CORPORATION,

UNION CARBIDE CORPORATION, VELAN VALVE CORP., WARREN PUMPS LLC, WILLIAM POWELL

COMPANY (THE), YORK INTERNATIONAL CORPORATION, Defendant.

Index No. 190030/2022, Motion Seq. No. 001.

Motion January 17, 2023.

March 14, 2023.

Supreme Court, New York County.

DECISION + ORDER ON MOTION

ADAM SILVERA, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 167, 168, 209, 210, 211, 212, 213, 214, 215, 221 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL.

Upon the foregoing documents, it is ordered that plaintiff's order to show cause for joint trials is granted for the reasons set forth below.

Here, plaintiff moves to join the instant action with Valletti, et. al. v Air & Liquid Systems Corp., et. al., 190045/2022, and Moran, et. al. v Air & Liquid Systems Corp., et. al., 190075/2022. Defendants oppose. Thereafter, plaintiff requested that consideration of the instant order to show cause be for the instant action and the Valletti action only as the plaintiff in the Moran action passed away. Below, the Court addresses and decides the motion with regard to the instant action and the Valletti action only.

The Case Management Order dated June 20, 2017 (hereinafter referred to as the "CMO") states that "[t]wo cases may be joined for trial where plaintiff demonstrates that joinder is warranted under Malcolm v National Gypsum Co. (995 F2d 346), and New York State cases interpreting Malcolm. Malcolm and its progeny list factors to measure whether cases should be joined; it is not necessary under Malcolm that all such factors be present to warrant joinder." CMO, §XXV. B. The factors to be considered under Malcolm are "(1) common worksites; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were

represented by the same counsel; and (8) type of cancer alleged". Malcolm, 955 F2d at 350-351. The United States Court of Appeals, 2nd Circuit, further noted that "[c]onsolidation of tort actions sharing common questions of law and fact is commonplace. This is true of asbestos-related personal injury cases as well." Malcolm, id. at 350 (internal quotations and citations omitted).

Plaintiff argues that consolidation of the two cases for joint trial as specified above is appropriate. With respect to the instant action and the Valletti action, plaintiff contends that both plaintiffs, Daniel Cohen and James Valletti, are currently living with pleural mesothelioma and were exposed to asbestos during common periods of time and during the course of their employment while in engineering spaces on Naval ships, working on valves, pumps, and machinery. Plaintiff further contends that there are overlapping defendants and that both plaintiffs are represented by the same counsel. In opposition, defendant Superior Lidgerwood Mundy Corporation argues that there are no common questions of law or fact, and that consolidation would be prejudicial to it. Opposing defendant further argues that there is no commonality as each plaintiff had unique worksites, did not work together, had different jobs, had different forms of exposure, and were exposed at different time periods. Defendant Blackmer joins defendant Superior Lidgerwood Mundy Corporation's opposition. Here, reviewing all the Malcolm factors, the Court finds that both plaintiffs, Mr. Cohen and Mr. Valletti, had similar occupations serving on Naval ships. Both plaintiffs were exposed to asbestos through their employment and their handling of similar materials and equipment. In fact, defendant Superior Lidgerwood Mundy Corporation's opposition papers concede that plaintiffs Cohen and Valletti were "exposed to asbestos when...replac[ing] packing and gaskets associated with pumps and valves" on Naval ships. Affirmation in Support of Opposition to Plaintiffs' Motion for a Joint Trial, p. 4. Additionally, both plaintiffs developed pleural mesothelioma from which they both currently live with, the discovery in both of these actions are complete, and both plaintiffs have the same counsel. Thus, six of the eight Malcolm factors have been satisfied. There are common issues of law and fact in both actions. The CMO explicitly states that the Court may order joinder of cases based upon the Malcolm factors and that not all such factors must be present. Here, the Malcolm factors support joinder of the two actions. Although the two plaintiffs did not share the exact same worksite, this does not preclude joinder of the cases for trial. Adequate safeguards can be put in place during the trial to avoid juror confusion. Thus, plaintiff's motion seeking a joint trial is granted as to the instant action with Valletti, et. al. v Air & Liquid Systems Corp., et. al., 190045/2022. Accordingly, it is

ORDERED that plaintiffs motion seeking a joint trial is granted as indicated above; and it is further

ORDERED that a joint trial is granted as to the instant action and Valletti, et. al. v Air & Liquid Systems Corp., et. al., 190045/2022; and it is further

ORDERED that, within thirty days of entry, plaintiffs shall serve a copy of this order upon all parties, together with notice of entry.

This constitutes the Decision/Order of the Court.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites